Courtroom dramas such as "Law and Order" are peppered with legal jargon to make them sound more authentic. But is it reasonable to expect anyone without a law degree to know what terms such as "standard duty of care" really mean?
Jury instructions were written long ago by lawyers who had absorbed such terms deep in their bones. But for average people called to serve as jurors--some of whom read below the 8th-grade level--such terminology can be a major impediment to understanding what's happening in front of them during a trial.
That's why many states are moving to simplify their instructions to juries. The Judicial Council of California, for example, has recommended changing the old "innocent misrecollection is not uncommon" into "people sometimes honestly forget things or make mistakes about what they remember."
Converting baffling terms into simple English is just one modification among many that state courts are making in jury recruitment and service. About half the states have adopted major changes in recent years, such as allowing jurors to take notes and ask questions of witnesses, as well as shortening their length of service.
"It is designed to empower and involve jurors more in the actual trial process," says Patricia Lee Refo, chair of the American Bar Association's jury project. Last month, the ABA approved a list of jury reforms similar to those adopted in many states, and will now lobby for their introduction elsewhere and at the federal level.
The current spate of reform was sparked by the insights of Michael Dann, a former judge in Maricopa County, Arizona. On taking the bench, Dann noticed how oblique things seemed to those sitting passively in the jury box. "Research shows that folks who take good notes are more likely to have a better grasp, not only in recall but in comprehension of the evidence," says Dann.
He aired his ideas in a law review article and soon afterward headed a task force that persuaded the Arizona Supreme Court to incorporate them in statewide practice. Numerous other states have since followed suit. Allowing jurors to submit written questions for witnesses remains a controversial idea. But the other changes, such as juror note-taking and having judges offer simple instructions earlier in the trial, have become commonplace.
Many courts are trying out other ways to ease the difficulties of jury duty, including day-to-day logistical problems. Minnesota may be the only state (in large part due to the expense) that offers to care for jurors' children, but Mark Haakinson, jury commissioner in Ramsey County, points out that not all the improvements cost money. Minnesota courts are attempting to address a common complaint by simply letting jurors know how long delays will last when they're kicked out of the courtroom during procedural discussions.
If states are focused on making jury service less of a trial, some of them are also making it harder to avoid. The "Jury Patriotism Act," promoted by the American Legislative Exchange Council, has already passed in nine states. Its goal is to broaden the pool by doing away with most exemptions from service. Some critics complain that it's a backdoor way to discourage lawsuits, because it increases filing fees in order to pay for juror compensation on lengthy trials.
In any event, the new law has already proved controversial in Arizona, which was the first state to pass it last year. The end of exemptions has made for hardships for some seniors in remote areas without transportation and the legislature is juggling bills that would change the rules for jury service yet again.